[Federal Register Volume 70, Number 49 (Tuesday, March 15, 2005)]
[Notices]
[Pages 12710-12716]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5127]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Final List of Bird Species to Which the Migratory Bird Treaty Act
Does Not Apply
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of availability.
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SUMMARY: We are publishing a final list of the nonnative bird species
that have been introduced by humans into the United States or its
territories and to which the Migratory Bird Treaty Act (MBTA) does not
apply. This action is required by the Migratory Bird Treaty Reform Act
(MBTRA) of 2004. The MBTRA amends the MBTA by stating that it applies
only to migratory bird species that are native to the United States or
its territories, and that a native migratory bird is one that is
present as a result of natural biological or ecological processes. This
notice identifies those species that are not protected by the MBTA,
even though they belong to biological families referred to in treaties
that the MBTA implements, as their presence in the United States and
its territories is solely the result of intentional or unintentional
human-assisted introductions.
ADDRESSES: The complete file for this notice is available for
inspection, by appointment (contact John L. Trapp, (703) 358-1714),
during normal business hours at U.S. Fish and Wildlife Service, 4501
North Fairfax Drive, Room 4107, Arlington, Virginia.
SUPPLEMENTARY INFORMATION:
What Is the Authority for This Notice?
Migratory Bird Treaty Reform Act of 2004 (Division E, Title I, Sec.
143 of the Consolidated Appropriations Act, 2005, Pub. L. 108-447).
What Is the Purpose of This Notice?
The purpose of this notice is to make the public aware of the final
list of ``all nonnative, human-introduced bird species to which the
Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) does not apply,'' as
required by the MBTRA of 2004.
This notice is strictly informational. It merely lists some of the
bird species to which the MBTA does not apply. The presence or absence
of a species on this list has no legal effect. This list does not
change the protections that any of these species might receive under
such agreements as CITES--the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (T.I.A.S. 8249), the
Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 275), or
the Wild Bird Conservation Act of 1992 (16 U.S.C. 4901-4916, 106 Stat.
2224). Regulations implementing the MBTA are found in parts 10, 20, and
21 of 50 CFR. The list of migratory birds covered by the MBTA is
located at 50 CFR 10.13.
What Was the Response of the Public to the Draft List?
A notice announcing a draft list of the nonnative human-introduced
bird species to which the MBTA does not apply was published on January
4, 2005 (70 FR 372), with a request for public comments. The notice
generated approximately 826 nonduplicated comments from the public. The
draft list was supported by 21 State wildlife agencies (Arizona Game
and Fish Department; Connecticut Bureau of Natural Resources; Delaware
Division of Fish and Wildlife; Florida Fish and Wildlife Conservation
Commission; Maryland Department of Natural Resources; Massachusetts
Division of Fisheries and Wildlife; Michigan Department of Natural
Resources; Montana Fish, Wildlife, and Parks; New Hampshire Fish and
Game Department; New Jersey Division of Fish and Wildlife; New York
State Division of Fish, Wildlife, and Marine Resources; North Carolina
Wildlife Resources Commission; North Dakota Game and Fish Department;
Oklahoma Department of Wildlife Conservation; Pennsylvania Game
Commission; Rhode Island Division of Fish and Wildlife; South Dakota
Department of Game, Fish, and Parks; Vermont Department of Fish and
Wildlife; Virginia Department of Game and Inland Fisheries; Wisconsin
Department of Natural Resources; and Wyoming Game and Fish Department),
11 nonprofit organizations representing bird conservation and science
interests (American Bird Conservancy--submitted on behalf of 10
constituent organizations; Atlantic Flyway Council--representing 17
States, 7 Provinces, Puerto Rico, and the U.S. Virgin Islands;
California Partners in Flight; Environmental Studies at Airlie-Swan
Research Program; Friends of Iroquois National Wildlife Refuge;
National Audubon Society; National Wildlife Federation; Ornithological
Council--representing 11 scientific societies of ornithology; Point
Reyes Bird Observatory; Tennessee Ornithological Society; and The
Nature Conservancy), 1 organization representing an extractive industry
(National Mining Association), and 18 private citizens.
Opposition to the draft list came from 4 animal-rights
organizations (Ecology Center of Southern California, Friends of
Animals, Friends of Montgomery Village Wildlife, and Humane Society of
the United States), 2 law firms (representing the Humane Society of the
United States and MBTA Advocates--the litigant in an outstanding
lawsuit involving the mute swan), and some 770 private citizens. The
vast majority of the latter comments are directly traceable to a
posting made on January 13 to a free, weekly e-mail subscription
service maintained jointly by the Fund for Animals and the Humane
Society of the United States to notify their members of ``hot issues in
animal protection'' and encourage them to write to public officials.
Nearly all of these comments repeat the four ``talking points''
included in the alert and exhibit other similarities indicative of a
common origin. The ``talking points'' are addressed in the Service's
responses to Issues 1, 2, 3, and 10.
Issue 1: One reviewer argued at length (and numerous others
suggested) that the Service must prepare an Environmental Impact
Statement (EIS) before publishing the final list of bird species to
which the Migratory Bird Treaty Act does not apply.
Service Response: In requiring (a) that the Secretary ``provide
adequate time for public comment'' on a draft list and (b) that a final
list be published ``not later
[[Page 12711]]
than 90 days after the date of enactment'' of the MBTRA (December 8,
2004), Congress did not allow sufficient time for the Service to
prepare an EIS. The preparation of an EIS would have been inconsistent
with the Service's duty to comply with the statutory time period.
Furthermore, NEPA does not apply, as this list, which has no legal
effect, is not the result of agency decisionmaking; also, publication
of the list is a ministerial duty based on factual determinations. To
the extent that any change in the scope of the MBTA has occurred, that
change occurred upon Public Law 108-447 going into effect.
Issue 2: One reviewer argued at length (and many others agreed)
that the draft list was inconsistent with the conventions with Canada,
Mexico, Japan, and Russia because it excluded nonnative species from
the protection of the MBTA. In particular, the reviewer asserted that
Article I of the treaty with Mexico, which states that ``it is right
and proper to protect birds denominated as migratory, whatever may be
their origin,'' demonstrates that the treaty parties intended to
protect nonnative species.
Service Response: Congress explicitly stated its sense that the
language of the MBTRA was ``consistent with the intent and language of
the four bilateral treaties implemented by'' the MBTA.
The list is clearly not inconsistent with the conventions with
Japan or Russia, as (a) those conventions list in an Annex (Japan) or
Appendix (Russia) the individual species that are covered, (b) all of
the species listed in the Annex or Appendix are native to both
signatory countries, and (c) none of the species on this list appears
in the Annex or Appendix.
In the case of the convention with Mexico, the language referred to
by the reviewer must be read in the context of the entire sentence. The
words ``whatever may be their origin'' are followed immediately by the
words ``which in their movements live temporarily'' in the United
States and Mexico. Therefore, the ``whatever may be their origin''
language is not inconsistent with the treaty applying only to species
that are native to one or both countries. Although the treaty is
admittedly silent on the issue, the families of migratory birds that
the parties chose to protect strongly suggests that the intention was
to protect only native migratory birds, as only families with species
native to the United States and Mexico are included. None of the listed
families are strictly nonnative to the United States or Mexico.
While the convention with Canada does not specifically make a
distinction between native and nonnative or exotic species, the Service
has traditionally and consistently interpreted and enforced the
convention and the MBTA as applying only to native species. This
approach is consistent with the historical fact that all of the
contemporaneous concerns leading to enactment of the Canadian
convention in 1916 and the MBTA in 1918 focused exclusively on imminent
threats to native species, including (a) devastation of native
waterfowl, dove and pigeon, and shorebird populations by market
hunters; (b) the slaughter of native herons and egrets to supply the
millinery trade with their plumes or aigrettes, and (c) the adornment
of women's hats with the feathers of native songbirds (Dorsey 1998:
165-246). Moreover, like the treaty with Mexico, the list of bird
groups covered by the treaty with Canada strongly suggests that the
intent of the parties was to cover native species. Neither the families
nor any of the other groupings or individual species mentioned are
purely nonnative.
In any case, Congress has acted, and the Service now has no
authority to enforce the prohibition of section 703 of the MBTA with
respect to nonnative species.
Issue 3: One reviewer argued at length (and many others agreed)
that, to avoid unintended consequences, the Service must go through the
entire list and provide scientific justification for the inclusion of
each individual species, conducting an exhaustive search of existing
literature and consulting with ornithologists to ensure that no
naturally occurring species have been included.
Service Response: Congress required only that the Service publish a
list of species that we deemed to be not protected by the MBTA by
virtue of their nonnative human-introduced status. Congress did not
require that we publish the actual data on which the list was based.
Nevertheless, we did conduct a comprehensive internal review of the
relevant ornithological literature in making our determinations. That
data was available for inspection during the public comment period as
part of the administrative record. In making our determinations, we
relied most prominently on the American Ornithologists' Union's (AOU
1998) Check-list of North American birds. The Check-list was
supplemented, where necessary, by Phillips's (1928) Wild birds
introduced or transplanted in North America, Long's (1981) Introduced
birds of the world, Berger's (1981) Hawaiian birdlife, Stevenson and
Anderson's (1994) The birdlife of Florida, and more than 200 other
sources. The Ornithological Council concluded in their comments that
``the list appears to be entirely consistent with the best available
ornithological science.'' The National Audubon Society and the National
Wildlife Federation offered their joint opinion that the list is
``scientifically defensible,'' ``thoroughly researched,'' and ``in
conformance with the decisions of the American Ornithologists' Union
and other proper scientific authorities.'' The Tennessee Ornithological
Society volunteered that, ``To the best of our knowledge, no species
occur on the list that do not meet the criteria [and] * * * no species
have been omitted.'' In the interest of full public disclosure, the
Service has posted--at http://www.migratorybirds.fws.gov--a summary of
the evidence that it evaluated in reaching its conclusion that all of
the species included in the final list are nonnative to the United
States and its territories and occur therein solely as a result of
human-assisted introductions.
Issue 4: Citing (a) fossil records, (b) historical illustrations,
and (c) claims of natural occurrence in western North America, one
reviewer claimed that ``Under the definitions contained within the
MBTRA, the mute swan is indeed a native species and hence entitled to
continuing coverage under the Migratory Bird Treaty Act.''
Service Response: We disagree for the reasons set forth in the
draft list (70 FR 372). To more specifically address this comment, we
provide additional information and analysis below.
(a) Fossil Records. The relevant scientific literature (A[llen]
1893; Brodkorb 1958 1964; Howard 1936, 1964; Miller 1948; Parmalee
1961; Shufeldt 1892, 1913a, 1913b; Wetmore 1933, 1935, 1943, 1956,
1957, 1959) reveals that four species of swans are recognized in the
prehistoric faunal record of the United States: Cygnus paloregonus
(extinct), C. hibbardi (extinct), C. columbianus (tundra swan), and C.
buccinator (trumpeter swan). Avian paleontologists who examined the
remains of paloregonus recognized that its skeletal structure was more
similar to that of a group of swans formerly lumped together in the
subgenus Sthenelides, a group that includes C. olor (the mute swan),
than it was to either the tundra or trumpeter swan. Although sometimes
referring to it as ``mute-like'' in structure, authorities have always
recognized paloregonus as totally distinct from the mute swan (Brodkorb
1964; Howard
[[Page 12712]]
1964; Wetmore 1959), with no evidence of any evolutionary lineage from
paloregonus to olor. Fossil remains of mute swans are known only from
present-day Azerbaijan, England, Germany, Ireland, Italy, and Portugal
(Howard 1964). In light of the above evidence, Wilmore's (1974:32)
unsupported statements regarding the supposed presence of mute swans in
North America prior to human settlement (i.e., ``From the discovery of
swan fossils of the Pleistocene period it is believed the mute swan was
indigenous to North America,'' and ``Further proof of the mute being a
native of North America has been found'') are not scientifically
credible.
(b) Historical Illustrations. We continue to conclude that none of
the birds depicted in Harriot (1590) can be confidently identified to a
particular species of swan, and the illustrations certainly do not
provide evidence of the presence of mute swans in Pamlico Sound, North
Carolina, in the late 16th century. John White (1537-1593), the
Governor of the Roanoke colony and the artist whose illustrations grace
Harriot (1590), produced a set of 27 portraits of North American birds
that now resides in the British Museum; while the trumpeter swan is one
of the 25 species illustrated by John White, the mute swan is not
(White 2002).
A variety of paper products (such as blotters, calendars, calling
cards, postcards, and trade cards) manufactured and sold in the United
States in the late 19th and early 20th century often were adorned with
fanciful illustrations of birds, and not infrequently the birds
depicted were of European origin, including such species as mute swan,
European robin, and European goldfinch. For this reason, commercial
illustrations such as the Currier & Ives print purportedly depicting
mute swans in the Chesapeake Bay in 1872 do not provide reliable
evidence of the native occurrence of this species.
It is unreasonable to suggest that a species as large and
distinctive as the mute swan--if it was truly a part of the native
North American avifauna--would not have been encountered by reputable
wildlife artists such as Alexander Wilson or John James Audubon and
depicted in their artwork, or collected by any of the early naturalists
such as Spencer Fullerton Baird, Charles Lucien Bonaparte, William
Brewster, Elliott Coues, Thomas Nuttall, and Robert Ridgway during
expeditions of exploration across the length and breadth of the
American frontier. The absence of mute swans in the works of Wilson and
Audubon, together with the absence of verifiable 18th or 19th century
specimen records, is sufficient evidence for us to conclude that the
mute swan is not native to the United States or its territories.
(c) Claims of natural occurrence in the western United States.
Contrary to the reviewer's claim, the range map in Dement'ev and
Gladkov (1952:303) does not depict a mute swan breeding population in
extreme northwestern Alaska. In fact, there are no known natural
occurrences of mute swans in Alaska (Ciaranca et al. 1992; Gabrielson
and Lincoln 1959; Gibson 1997). Similarly, the suggestion of
``migration'' between northeast Siberia and northwest Alaska, ``with
[mute] swans coming down from Alaska and taking up residence in
Washington, Oregon, and parts of Canada in between'' is speculation,
unsupported by evidence (Ciaranca et al. 1992).
All occurrences of the mute swan in British Columbia, Washington,
Oregon, and California--including all known instances of breeding--can
be confidently attributed to birds originating from human-assisted
introductions or escapes (Campbell et al. 1990; Washington
Ornithological Society 2004; Gilligan et al. 1994; Small 1994). The
mute swans photographed on a lake in Del Monte, California, and
published in the August 1904 issue of Country Life in America magazine
undoubtedly represent an early introduction of domesticated or
semidomesticated birds to the grounds of the luxurious Hotel Del Monte
(opened in 1880) or the Old Del Monte golf course (opened in 1897),
both located on the Monterey Peninsula. In short, there are no known
natural occurrences of mute swans in any of these jurisdictions.
Issue 5: Several reviewers complained that we had not ruled out the
possibility of natural occurrence in the United States or its
territories for one or more of the species included on the draft list,
with the following 19 being specifically mentioned by one or more
respondents: bar-headed goose, red-breasted goose, mute swan, white-
faced whistling duck, ruddy shelduck, common shelduck, white stork,
king vulture, red-backed hawk, great black-hawk, southern lapwing,
blue-headed quail-dove, black-throated mango, San Blas jay, great tit,
greater Antillean bullfinch, Cuban bullfinch, Cuban grassquit, and
European greenfinch.
Service Response: We again reviewed the scientific sources that
were used to make a determination that these species are not native to
the United States or its territories. We conclude that there is
insufficient evidence to show that any of these species have occurred
anywhere in the United States or its territories unaided by human
assistance. In particular, the absence of any substantiated record of
natural occurrence in the United States or its territories in the AOU
Check-list (1998, as amended) or other competent authorities
constitutes substantial evidence that none of these species is native
to the United States or its territories. This decision does not
preclude the addition of any of these species to the list of migratory
birds protected by the MBTA (50 CFR 10.13) at some future date should
substantive evidence (such as a specimen, identifiable photograph, or
sound recording) become available confirming its natural occurrence in
the United States or its territories.
Issue 6: Two reviewers questioned the omission of the muscovy duck
and requested a clarification as to why this species is not on the
list.
Service Response: The muscovy duck (Cairina moschata) has been
domesticated for hundreds of years, with feral birds now being broadly
distributed across the globe. In the United States, domesticated and
semidomesticated birds are found in farms, parks, private collections,
and zoos, and feral populations have been established in south Texas,
Florida, and possibly elsewhere. It is native to the neotropics, where
it is ``Resident in the lowlands from Sinaloa and Tamaulipas [Mexico],
south through most of Middle America (including Cozumel Island) and
South America south, west of the Andes to western Ecuador and east of
the Andes to northern Argentina and Uruguay'' (AOU 1998:64). Through
natural expansion, it is now a ``Rare visitor on the Rio Grande in
Texas (Hildalgo, Starr, and Zapata counties), where breeding was
reported in 1994'' (ibid. 64-65). On that basis, we believe that it now
qualifies for protection under the MBTA, and will be making a formal
proposal to that effect in a forthcoming revision to the list of
migratory birds (50 CFR 10.13) to be published in the Federal Register.
Issue 7: The Service must continue to protect all migratory birds
until it promulgates the final list of nonnative species.
Service Response: The Service can only enforce the prohibitions of
the MBTA as they exist. To the extent that those prohibitions ever
applied to nonnative species, they no longer applied as of December 8,
2004. As discussed above, the publication of this final list does not
have any legal effect. Even if it did, this issue is now moot with
publication of the final list.
[[Page 12713]]
Issue 8: One reviewer noted that the MBTRA does little to resolve
the problems caused by nonnative birds in the Hawaiian Islands, where
at least seven species native to the continental United States have
been intentionally introduced and established, with some of them now
being detrimental to native wildlife.
Service Response: The MBTA and the international migratory bird
conventions do not allow the exemption of species on a geographic
basis. If a species is native anywhere in the United States or its
territories and belongs to a family covered by one or more of the four
conventions, it is protected anywhere and everywhere that the MBTA
applies. Federal regulations implementing the MBTA authorize mechanisms
such as depredation permits or depredation orders that may be used to
grant local authorities greater leeway in dealing with situations in
which protected migratory birds are causing damage to agricultural
crops, livestock, or wildlife, or when causing a health hazard or other
nuisance.
Issue 9: One reviewer argued that nothing in the MBTA or the MBTRA
prevents the Service from affording the protection of the MBTA to
species that belong to families not covered by any of the underlying
migratory bird treaties, and suggested biologically-based criteria that
would consider the population status of a species and its need for
conservation action rather than the inclusion or exclusion of a family
in one or more of the treaties.
Service Response: We disagree. Neither the MBTA nor the MBTRA
provide us the authority to grant MBTA protection to species that (a)
don't belong to any of the 69 families covered by the Canadian,
Mexican, or Russian conventions; or (b) aren't specifically listed in
the Japanese or Russian conventions. The inclusion of species that
belong to families not currently covered by any of the conventions
(such as Psittacidae or Timaliidae, for example) would require an
amendment to one of the conventions to expand the families to which it
applies (this was done with respect to the treaty with Mexico in 1972),
or an amendment to the MBTA applying its prohibitions to species not
covered by any of the treaties.
Issue 10: Many of the 770 private citizens opposed to the Service's
determination that these species are not subject to the protection of
the MBTA expressed the view that publication of the list ``will declare
an open season on the killing of over a hundred species of birds, and
mark the beginning of a mass slaughter campaign against mute swans.''
Service Response: Of the 124 species included on the final list,
only one, the mute swan, has ever been treated as Federally protected
under the MBTA. See Hill v. Norton, 275 F. 3d 98 (D.C. Cir. 2001). By
declaring that the MBTA does not apply to nonnative human-introduced
species, the MBTRA merely restores the status quo that prevailed during
the first 83 years of the MBTA. More than 100 species of nonnative
migratory birds have been introduced into the United States or its
territories since enactment of the MBTA in 1918. In the absence of
Federal protection, 18 of those species successfully established self-
sustaining breeding populations. Today, 16 of these 18 species continue
to maintain thriving breeding populations and several have expanded
their ranges dramatically, all in the continued absence of Federal
protection. In publishing this list, we do not ``declare on open
season'' or promote the killing of any species; we merely list the
species that are not Federally protected under the MBTA because they
are nonnative and human-introduced.
What Determination Did the Service Make Regarding the Mute Swan?
Because of the previous litigation regarding the mute swan, and
because of the comments we received asserting that the mute swan is a
native species, we have decided to treat the comments received from
MBTA Advocates on the proposed list as a petition for rulemaking
pursuant to the Administrative Procedure Act, 5 U.S.C. 553(e), to add
the mute swan to the list of birds covered by the MBTA found at 50 CFR
10.13. As noted above, the list of nonnative species in this notice is
published for information purposes, and does not constitute a binding
factual determination by the agency with respect to any of the species
listed. In contrast, we have made, in response to the mute swan
petition, a factual determination that the mute swan is not native to
the United States or its territories. In a separate letter, we have
informed MBTA Advocates that we have denied their petition. Members of
the public may at any time provide the Service with information
concerning whether (a) birds currently listed in 50 CFR 10.13 are not
covered by the MBTA, or (b) birds not listed in 50 CFR 10.13 are
covered by the MBTA, for any reason, including their status as native
or nonnative species. The public may also petition for specific
rulemaking changes. In any case, 50 CFR 10.13, subject to any
amendments, constitutes the Service's binding interpretation of the
species covered by the MBTA.
How Does the Final List Differ From the Draft List?
Criteria. We revised the first sentence of criteria 3 by replacing
``confidently attributed solely to'' with ``best (or most reasonably)
explained by.'' As revised, this sentence now reads as follows: ``All
of its [each species] known occurrences in the United States can be
best (or most reasonably) explained by intentional or unintentional
human-assisted introductions to the wild.'' This change reflects the
reality that there is sometimes a certain amount of uncertainty about
the origin or provenance of individuals of some species that appear in
the United States. For example, while it may be possible that an
individual of a species with no known history of natural occurrence in
the United States represents a natural vagrant, the most plausible or
reasonable explanation is often that the individual involved represents
an intentional introduction or escape from captivity. This criteria is
thus consistent with the requirement for substantial evidence of
natural occurrence before adding a species to the list of species
protected by the MBTA at 50 CFR 10.13.
The List. After further review of the literature and the draft
list, we removed 3 species and added 15.
Lanner falcon (Falco biarmicus), saker falcon (F. cherrug), and
barbary falcon (F. pelegrinoides) are removed because of a lack of
substantial evidence that they meet the criteria for inclusion.
Lanner and saker falcons are regularly imported into this country
for use in recreational falconry or bird control at airports, and are
believed to sometimes escape from their handlers, but we have found no
literature documenting the presence of escapes in the United States.
The barbary falcon is currently protected under the MBTA as a
subspecies of the peregrine falcon (F. peregrinus), in accordance with
the taxonomic treatment of the AOU (1998) Check-list. Like the lanner
and saker, barbary falcons are regularly imported into this country for
use in recreational falconry or bird control at airports, and are
believed to sometimes escape from their handlers, but we have found no
literature documenting the presence of escapes in the United States.
The removal of these three species or subspecies from this list
does not determine their qualification for protection under the MBTA.
The following 14 species were overlooked in the notice of January 4
but there is substantial evidence of nonnative human-introduced
[[Page 12714]]
occurrence in the United States or its territories, so we add them to
the final list (the authorities upon which these determinations are
based are noted parenthetically):
Nettapus coromandelianus, Cotton Pygmy-goose (Pranty 2004).
Pelecanus rufescens, Pink-backed Pelican (McKee and Erickson 2002;
Pranty 2004).
Anhinga melanogaster, Oriental Darter (McKee and Erickson 2002).
Platalea leucorodia, Eurasian Spoonbill (Pranty 2004).
Threskiornis aethiopicus, Sacred Ibis (Pranty 2004).
Terathopius ecuadatus, Bateleur (Small 1994).
Grus virgo, Demoiselle Crane (Bull 1974; Cole and McCaskie 2004).
Vanellus spinosus, Spur-winged Lapwing (Bull 1974).
Corvus albicollis, White-necked Raven (Pranty 2004).
Corvus nasicus, Cuban Crow (Zeranski and Baptist 1990).
Pyrrhocorax pyrrhocorax, Red-billed Chough (Zeranski and Baptist
1990).
Dendrocitta vagabunda, Rufous Treepie (Bull 1974).
Saxicoloides fulicata, Indian Robin (Bull 1974).
Turdus ruficollis, Dark-throated Thrush (Bull 1974).
Cyanerpes cyaneus, Red-legged Honeycreeper (Pranty 2004).
What Criteria Did We Use To Identify Bird Species Not Protected by the
MBTA?
In accordance with the language of the MBTRA, the Service relied on
substantial evidence in the scientific record in making a determination
as to which species qualified as nonnative and human-introduced. Thus,
each species in the final list meets the following four criteria:
(1) It belongs to a family of birds covered by the MBTA by virtue
of that family's inclusion in any of the migratory bird conventions
with Canada, Mexico, Russia, or Japan. The Canadian and Mexican
treaties list the families of birds that are protected. In the Russian
treaty, the specific species covered are listed in an Appendix in which
the species are arranged by family. Article VIII of the Russian treaty
allows the parties to protect additional species that belong to the
same family as a species listed in the Appendix. The treaty with Japan
lists covered species in an Annex without reference to families, and
contains no provision that would allow treaty parties to unilaterally
add additional species.
(2) There is credible documented evidence that it has occurred at
least once in an unconfined state in the United States or its
territories.
(3) All of its known occurrences in the United States can be best
(or most reasonably) explained by intentional or unintentional human-
assisted introductions to the wild. An intentional introduction is one
that was purposeful--for example, the person(s) or institution(s)
involved intended for it to happen. An unintentional introduction is
one that was unforeseen or unintended--for example, the establishment
of self-sustaining populations following repeated escapes from captive
facilities. Self-sustaining populations are able to maintain their
viability from one generation to the next through natural reproduction
without the introduction of additional individuals.
(4) There is no credible evidence of its natural occurrence in the
United States unaided by direct or indirect human assistance. The
native range and known migratory movements (if any) of the species
combine to make such occurrence in the United States extremely
unlikely, both historically and in the future. Migratory bird species
with credible evidence of natural occurrence anywhere in the United
States or its territories, even if introduced elsewhere within these
jurisdictions, are listed in 50 CFR 10.13.
The Final List: What Are the Bird Species Not Protected by the MBTA?
We made this list as comprehensive as possible by including all
nonnative, human-assisted species that belong to any of the families
referred to in the treaties and whose occurrence(s) in the United
States and its territories have been documented in the scientific
literature. It is not, however, an exhaustive list of all the nonnative
species that could potentially appear in the United States or its
territories as a result of human assistance. New species of nonnative
birds are being reported annually in the United States, and it is
impossible to predict which species might appear in the near future.
The appearance of a species on this list does not preclude its
addition to the list of migratory birds protected by the MBTA (50 CFR
10.13) at some later date should substantial evidence come to light
confirming natural occurrence in the United States or its territories.
The 125 species on this list are arranged by family according to
the American Ornithologists' Union (1998, as amended by Banks et al.
2003). Within families, species are arranged alphabetically by
scientific name. Common and scientific names follow Monroe and Sibley
(1993). Where the names adopted by the American Ornithologists' Union
differ from those of Monroe and Sibley, they are given in parentheses.
Species with established, self-sustaining populations are denoted with
an asterisk (*).
Family Anatidae
Aix galericulata, Mandarin Duck
Alopochen aegyptiacus, Egyptian Goose
Anas hottentota, Hottentot Teal
Anas luzonica, Philippine Duck
Anser anser, Graylag Goose
Anser anser `domesticus', Domestic Goose
Anser cygnoides, Swan Goose
Anser indicus, Bar-headed Goose
Branta ruficollis, Red-breasted Goose
Callonetta leucophrys, Ringed Teal
Chenonetta jubata, Maned Duck
Coscoroba coscoroba, Coscoroba Swan
Cygnus atratus, Black Swan
Cygnus melanocoryphus, Black-necked Swan
Cygnus olor, Mute Swan*
Dendrocygna viduata, White-faced Whistling-Duck
Neochen jubata, Orinoco Goose
Netta peposaca, Rosy-billed Pochard
Netta rufina, Red-crested Pochard
Nettapus coromandelianus, Cotton Pygmy-goose
Tadorna ferruginea, Ruddy Shelduck
Tadorna tadorna, Common Shelduck
Family Pelecanidae
Pelecanus onocroatalis, Great White Pelican
Pelecanus rufescens, Pink-backed Pelican
Family Phalacrocoracidae
Phalacrocorax gaimardi, Red-legged Cormorant
Family Anhingidae
Anhinga melanogaster, Oriental Darter
Family Threskiornithidae
Platalea leucorodia, Eurasian Spoonbill
Threskiornis aethiopicus, Sacred Ibis
Family Ciconiidae
Ciconia abdimii, Abdim's Stork
Ciconia ciconia, White Stork
Ciconia episcopus, Woolly-necked Stork
Ephippiorhynchus asiaticus, Black-necked Stork
Family Cathartidae
Sarcoramphus papa, King Vulture
Family Phoenicopteridae
Phoenicopterus chilensis, Chilean Flamingo
Phoenicopterus minor, Lesser Flamingo
Family Accipitridae
Buteo polyosoma, Red-backed Hawk
Buteogallus urubitinga, Great Black-Hawk
Gyps sp., Griffon-type Old World vulture
Terathopius ecuadatus, Bateleur
Family Rallidae
Aramides cajanea, Gray-necked Wood-Rail
Family Gruiidae
Balearica pavonina, Black Crowned-Crane
Balearica regulorum, Gray Crowned-Crane
[[Page 12715]]
Grus antigone, Sarus Crane
Grus virgo, Demoiselle Crane
Family Charadriidae
Vanellus chilensis, Southern Lapwing
Vanellus spinosus, Spur-winged Lapwing
Family Laridae
Larus novaehollandiae, Silver Gull
Family Columbidae
Caloenas nicobarica, Nicobar Pigeon
Chalcophaps indica, Emerald Dove
Columba livia, Rock Pigeon*
Columba palumbus, Common Wood-Pigeon
Gallicolumba luzonica, Luzon Bleeding-heart
Geopelia cuneata, Diamond Dove
Geopelia humeralis, Bar-shouldered Dove
Geopelia striata, Zebra Dove*
Geophaps lophotes, Crested Pigeon
Geophaps plumifera, Spinifex Pigeon
Geophaps smithii, Partridge Pigeon
Leucosarcia melanoleuca, Wonga Pigeon
Phaps chalcoptera, Common Bronzewing
Starnoenas cyanocephala, Blue-headed Quail-Dove
Streptopelia bitorquata, Island Collared-Dove*
Streptopelia chinensis, Spotted Dove*
Streptopelia decaocto, Eurasian Collared-Dove*
Streptopelia risoria, Ringed Turtle-Dove*
Family Strigidae
Pulsatrix perspicillata, Spectacled Owl
Family Trochilidae
Anthracothorax nigricollis, Black-throated Mango
Family Corvidae
Callocitta colliei, Black-throated Magpie-Jay
Corvus albicollis, White-necked Raven
Corvus corone, Carrion Crow
Corvus nasicus, Cuban Crow
Corvus splendens, House Crow
Cyanocorax caeruleus, Azure Jay
Cyanocorax sanblasianus, San Blas Jay
Dendrocitta vagabunda, Rufous Treepie
Garrulus glandarius, Eurasian Jay
Pyrrhocorax pyrrhocorax, Red-billed Chough
Urocissa erythrorhyncha, Blue Magpie (=Red-billed Blue-Magpie)
Family Alaudidae
Alauda japonica, Japanese Skylark
Lullula arborea, Wood Lark
Melanocorypha calandra, Calandra Lark
Melanocorypha mongolica, Mongolian Lark
Family Paridae
Parus caeruleus, Blue Tit
Parus major, Great Tit
Parus varius, Varied Tit
Family Cinclidae
Cinclus cinclus, White-throated (=Eurasian) Dipper
Family Sylviidae
Cettia diphone, Japanese Bush-Warbler*
Sylvia atricapilla, Blackcap
Family Turdidae
Copsychus malbaricus, White-rumped Shama*
Copsychus saularis, Oriental Magpie-Robin
Erithacus rubecula, European Robin
Luscinia akahige, Japanese Robin
Luscinia komadori, Ryukyu Robin
Luscinia megarhynchos, Common (=European) Nightingale
Saxicoloides fulicata, Indian Robin
Turdus philomelos, Song Thrush
Turdus ruficollis, Dark-throated Thrush
Family Prunellidae
Prunella modularis, Hedge Accentor (=Dunnock)
Family Thraupidae
Piranga rubriceps, Red-hooded Tanager
Thraupis episcopus, Blue-gray Tanager
Cyanerpes cyaneus, Red-legged Honeycreeper
Family Emberizidae
Emberiza citrinella, Yellowhammer
Gubernatrix cristata, Yellow Cardinal
Loxigilla violacea, Greater Antillean Bullfinch
Melopyrrha nigra, Cuban Bullfinch
Paroaria capitata, Yellow-billed Cardinal*
Paroaria coronata, Red-crested Cardinal*
Paroaria dominicana, Red-cowled Cardinal
Paroaria gularis, Red-capped Cardinal
Sicalis flaveola, Saffron Finch*
Tiaris canora, Cuban Grassquit
Family Cardinalidae
Passerina leclacherii, Orange-breasted Bunting
Family Icteridae
Gymnostinops montezuma, Montezuma Oropendola
Icterus icterus, Troupial*
Icterus pectoralis, Spot-breasted Oriole*
Leistes (=Sturnella) militaris, Red-breasted Blackbird (=Greater
Red-breasted Meadowlark)
Family Fringillidae
Carduelis cannabina, Eurasian Linnet
Carduelis carduelis, European Goldfinch
Carduelis chloris, European Greenfinch
Carduelis cucullata, Red Siskin*
Carduelis magellanica, Hooded Siskin
Loxia pysopsittacus, Parrot Crossbill
Serinus canaria, Island (=Common) Canary*
Serinus leucopygius, White-rumped Seedeater
Serinus mozambicus, Yellow-fronted Canary*
The MBTA also does not apply to many other bird species, including
(1) nonnative species that have not been introduced into the U.S. or
its territories, and (2) species (native or nonnative) that belong to
the families not referred to in any of the four treaties underlying the
MBTA. The second category includes the Tinamidae (tinamous), Cracidae
(chachalacas), Phasianidae (grouse, ptarmigan, and turkeys),
Odontophoridae (New World quail), Burhinidae (thick-knees), Glareolidae
(pratincoles), Pteroclididae (sandgrouse), Psittacidae (parrots),
Todidae (todies), Dicruridae (drongos), Meliphagidae (honeyeaters),
Monarchidae (monarchs), Pycnonotidae (bulbuls), Sylviinae (Old World
warblers, except as listed in Russian treaty), Muscicapidae (Old World
flycatchers, except as listed in Russian treaty), Timaliidae
(wrentits), Zosteropidae (white-eyes), Sturnidae (starlings, except as
listed in Japanese treaty), Coerebidae (bananaquits), Drepanidinae
(Hawaiian honeycreepers), Passeridae (Old World sparrows, including
house or English sparrow), Ploceidae (weavers), and Estrildidae
(estrildid finches), as well as numerous other families not represented
in the United States or its territories. A partial list of the
nonnative human-introduced species included in category 2 is available
at http://migratorybirds.fws.gov.
Author
John L. Trapp, U.S. Fish and Wildlife Service, Division of Migratory
Bird Management, Mail Stop 4107, 4501 North Fairfax Drive, Arlington,
VA 22203.
References Cited
A[llen], J.A. 1893. Shufeldt on fossil birds from Oregon. Auk 10:343-
345.
American Ornithologists' Union. 1998. Checklist of North American
birds: the species of birds of North America from the Arctic through
Panama, including the West Indies and Hawaiian Islands. 7th edition.
Washington, DC. 829 pp.
Banks, R.C., C. Cicero, J.L. Dunn, A. W. Kratter, P.C. Rasmussen, J.V.
Remsen Jr., J.D. Rising, and D.F. Stotz. 2003. Forty-fourth supplement
to the American Ornithologists' Union Checklist of North American
birds. Auk 120:923-931.
Berger, A.J. 1981. Hawaiian birdlife. 2nd edition. University of Hawaii
Press, Honolulu.
Brodkorb, P. 1958. Fossil birds from Idaho. Wilson Bulletin 70:237-242.
Brodkorb, P. 1964. Catalogue of fossil birds. Part 2 (Anseriformes
through Galliformes). Bulletin of the Florida State Museum Biological
Sciences 8:195-335.
Bull, J. 1974. Birds of New York state. American Museum of Natural
History, New York. 655 pp.
Campbell, R.W., N.K. Dawe, I. McTaggart-Cowan, J. M. Cooper, G. W.
Kaiser, and M. C. E. McNall. 1990. The birds of British Columbia.
Volume 1. Royal British
[[Page 12716]]
Columbia Museum, Victoria. 514 pp.
Ciaranca, M. A., C. C. Allin, and G. S. Jones. 1992. Mute Swan (Cygnus
olor). Birds of North America 273 (A. Poole and F. Gill, eds.), 28 pp.
Cole, L. W., and G. McCaskie. 2004. Report of the California Bird
Records Committee: 2002 records. Western Birds 35:2-31.
Dement'ev, G. P., and N. A. Gladkov (eds.). 1952. Birds of the Soviet
Union. Volume IV. Translated from Russian in 1967 by Israel Program for
Scientific Translations, Jerusalem. 683 pp.
Dorsey, K. 1998. The dawn of conservation diplomacy: U.S.-Canadian
wildlife protection treaties in the Progressive Era. University of
Washington Press, Seattle. 311 pp.
Gabrielson, I.N., and F.C. Lincoln. 1959. The birds of Alaska.
Stackpole Books, Harrisburg, Pennsylvania. 922 pp.
Gibson, D.D. 1997. Inventory of the species and subspecies of Alaska
birds. Western Birds 28:45-95.
Gilligan, J., D. Rogers, M. Smith, and A. Contreras. 1994. Birds of
Oregon: status and distribution. Cinclus Publications, McMinnville,
Oregon. 330 pp.
Harriot, T. 1590. A brief and true report of the new found land of
Virginia. An unabridged 1972 republication of Theodor deBry's English-
language edition, with new Introduction by Paul Hulton. Dover
Publications, New York. 91 pp.
Howard, H. 1936. Further studies upon the birds of the Pleistocene of
Rancho La Brea. Condor 38:32-36.
Howard, H. 1964. Fossil Anseriformes. Pp. 233-326 in J. Delacour (ed.),
The waterfowl of the world. Volume 4. Country Life Ltd, London. 364 pp.
Long, J.L. 1981. Introduced birds of the world: the worldwide history,
distribution, and influence of birds introduced to new environments.
Universe Books, New York. 528 pp.
McKee, T., and R.A. Erickson. 2002. Report of the California Bird
Records Committee: 2000 records. Western Birds 33:175-201.
Miller, A. H. 1948. The whistling swan in the Upper Pliocene of Idaho.
Condor 50:132.
Monroe, B.L., Jr., and C.G. Sibley. 1993. A world checklist of birds.
Yale University Press, New Haven. 393 pp.
Parmalee, P.W. 1961. A prehistoric record of the trumpeter swan from
central Pennsylvania. Condor 75:212-213.
Phillips, J.C. 1928. Wild birds introduced or transplanted in North
America. United States Department of Agriculture Technical Bulletin 61,
63 pp.
Pranty, B. 2004. Florida's exotic avifauna: a preliminary checklist.
Birding 36:362-372.
Shufeldt, R.W. 1892. A study of the fossil avifauna of the Equus Beds
of the Oregon desert. Journal of the Academy of Natural Sciences
Philadelphia 11:389-425. (Not seen; cited by reference).
Shufeldt, R.W. 1913a. Contributions to avian paleontology. Auk 30:29-
39.
Shufeldt, R.W. 1913b. Review of the fossil fauna of the desert region
of Oregon, with a description of additional material collected there.
Bulletin of the American Museum of Natural History 32:123-178. (Not
seen; cited by reference).
Small, A. 1994. California birds: their status and distribution. Ibis
Publishing Company, Vista, California. 342 pp.
Stevenson, H.M., and B.H. Anderson. 1994. The birdlife of Florida.
University Press of Florida, Gainesville.
Washington Ornithological Society. 2004. Checklist of Washington birds.
Available at http://www.wos.org/WAList01.htm. Accessed February 22,
2005.
Wetmore, A. 1933. Pliocene bird remains from Idaho. Smithsonian
Miscellaneous Collections 87(20), 12 pp.
Wetmore, A. 1935. A record of the trumpeter swan from the Late
Pleistocene of Illinois. Wilson Bulletin 47:237.
Wetmore, A. 1943. Remains of a swan from the Miocene of Arizona. Condor
45:120.
Wetmore, A. 1956. A checklist of the fossil and prehistoric birds of
North America and the West Indies. Smithsonian Miscellaneous
Collections 131(5), 105 pp.
Wetmore, A. 1957. A fossil rail from the Pliocene of Arizona. Condor
59:267-268.
Wetmore, A. 1959. Birds of the Pleistocene in North America.
Smithsonian Miscellaneous Collections 138(4), 24 pp.
White, A.H. 2002. North American bird paintings by John White, Governor
of Roanoke. Birding 34:130-134.
Wilmore, S.B. 1974. Swans of the world. Taplinger Publishing Company,
New York. 229 pp.
Zeranski, J.D., and T.R. Baptist. 1990. Connecticut birds. University
Press of New England, Hanover. 328 pp.
Other Sources
A list of other sources used to compile this list is available upon
request from any of the ADDRESSES listed above. It has also been posted
online at http://migratorybirds.fws.gov.
Dated: March 3, 2005.
Steve Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 05-5127 Filed 3-11-05; 11:37 am]
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